August 20, 2015 Guidance for School Districts Regarding Transgender and Gender Nonconforming Students
KEEPING YOU INFORMED…
School districts are facing an increased number of situations involving transgender and gender nonconforming students. While New York has yet to enact legislation specifically addressing transgender and gender nonconforming students, the State Education Department recently issued Guidance outlining best practices regarding these issues.
The Dignity for All Students Act prohibits discrimination on the basis of gender identity or expression, but does not specifically address transgender students. The SED’s Guidance is designed to ensure a safe and supportive environment for transgender and gender nonconforming students. The majority of the information within the Guidance is based on federal law, law from other states and examples from New York school districts and their students.
The common theme throughout the Guidance is that school districts should work closely with a transgender student and the student’s family in devising an appropriate plan regarding the student’s transgender status and social transition. These situations are unique and should be addressed on a case-by-case basis. For example, some students will feel uncomfortable informing their peers or their families that they are transgender, while other students will be comfortable doing so.
The Guidance also addresses the following common areas of concern: student names and pronouns; student records; and student restrooms and locker room accommodations.
Transgender and Gender Nonconforming Student Names and Pronouns
School districts may encounter a situation in which a transgender student desires to be referred to by a name that aligns with his/her gender identity. The social gender transition of a transgender student will be made more easily with the desired name and pronoun usage when addressing and referring to that student. This is important in making the student feel safe, supported and accepted.
If a transgender student has been attending the school district for a number of years and has been using his/her birth name during this time, a plan should be developed for initiating the use of the new name and appropriate pronouns. The plan should be communicated to the administration and teaching staff at the request of the transgender student and his/her family. If the transgender student is new to a school, the name and pronoun usage should, with the approval and consent of the student and his/her family, be initiated as soon as possible in order to facilitate a welcoming atmosphere.
Transgender and Gender Nonconforming Student Records
The school district should, if the transgender student wishes, maintain two files of student records. One file should contain all of the student’s information and documents using his/her birth name. Another file should be made and kept using the transgender student’s new chosen name once the school district is notified of the change. This will enable a school district to keep all of the transgender student’s information on file while allowing for a more seamless social transition in referring to the transgender student by his/her chosen name.
While medical records are confidential, the school nurse must ensure that the student receives appropriate medical care and, therefore, may occasionally need to use the transgender student’s birth name. The nurse should refer to the student by his/her chosen name. The birth name may have to be used on written documentation in order to file health insurance claims or communicate with other medical and health care providers.
Transgender and Gender Nonconforming Student Restrooms and Locker Rooms
The use of restrooms and locker rooms pose possibly the most difficult situation a school district may face regarding a transgender student. The United States Departments of Education and Justice recently stated that, pursuant to Title IX of the Education Amendments of 1972, “prohibiting a student from accessing restrooms that align with his or her gender identity is a prohibited form of discrimination.”
A school district should permit a transgender student to utilize the restroom assigned to the gender with which he/she identifies. A school district should also provide a more private alternative restroom (for example, a bathroom located in a school nurse’s office). This additional facility would serve two purposes. First, if a transgender student feels uncomfortable using either the men’s or women’s public restroom, the student might prefer a more private, gender neutral environment. The school should never, however, require a transgender student to utilize this alternative restroom. Second, the alternative restroom should be made available to nontransgender students who may feel uncomfortable using the men’s or women’s bathroom with a transgender student.
Similar issues may arise when students are in gym class. Changing facilities may require modification. To address this issue, some school districts have installed curtains allowing both transgender and non-transgender students to use the facility with which they identify, while providing privacy if and when needed.
If you have any questions about SED’s Guidance regarding transgender and gender nonconforming students or would like assistance with a particular situation, please contact us.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2015